ELONIS v. UNITED STATES
No. 13-983
SUPREME COURT OF THE UNITED STATES
June 1, 2015
OCTOBER TERM, 2014
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ELONIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 13-983. Argued December 1, 2014-Decided June 1, 2015
After his wife left him, petitioner Anthony Douglas Elonis, under the pseudonym “Tone Dougie,” used the social networking Web site Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights. Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him.
When Elonis‘s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring Elonis‘s Facebook activity and eventually arrested him. He was charged with five counts of violating
Held: The Third Circuit‘s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a
(a)
(b) The Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such a requirement. Morissette v. United States, 342 U. S. 246, 250. This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id., at 252. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U. S. 250, 251. Thus, criminal statutes are generally interpreted “to include broadly applicable scienter requirements, even where the statute... does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64, 70. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” Staples v. United States, 511 U. S. 600, 608, n. 3. Federal criminal statutes that are silent on the required mental state should be read to include “only that mens rea which is necessary to separate” wrongful from innocent conduct. Carter v. United States, 530 U. S. 255, 269. In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require... specific intent.” Ibid. Pp. 9-13.
(c) The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U. S., at 72. In the context of
730 F. 3d. 321, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 13-983
ANTHONY DOUGLAS ELONIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 1, 2015]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Federal law makes it a crime to transmit in interstate commerce “any communication containing any threat... to injure the person of another.”
I
A
Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook “friends” who are notified when new content is posted. In May 2010, Elonis‘s wife of nearly seven years left him, taking with her their two young children. Elonis began “listening to more vio-
Elonis‘s co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a “Halloween Haunt” event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker‘s neck, and in the caption Elonis wrote, “I wish.” Id., at 340. Elonis was not Facebook friends with the co-worker and did not “tag” her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook “friend” of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his Facebook page:
“Moles! Didn‘t I tell y‘all I had several? Y‘all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y‘all think it‘s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I‘m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?” App. 332.
Elonis‘s posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164-165, 207. In the actual sketch, called “It‘s Illegal to Say...,” a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:
“Hi, I‘m Tone Elonis.
Did you know that it‘s illegal for me to say I want to kill my wife?
It‘s one of the only sentences that I‘m not allowed to say....
Now it was okay for me to say it right then because I was just telling you that it‘s illegal for me to say I want to kill my wife...
Um, but what‘s interesting is that it‘s very illegal to say I really, really think someone out there should kill my wife....
But not illegal to say with a mortar launcher.
Because that‘s its own sentence. . . .
I also found out that it‘s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you‘d have a clear line of sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . .” Id., at 333.
After viewing some of Elonis‘s posts, his wife felt “extremely afraid for [her] life.” Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148-150. Elonis referred to the order in another post on his “Tone Dougie” page, also included in Count Two of the indictment:
“Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time‘ll add zeros to my settlement . . .
And if worse comes to worse
I‘ve got enough explosives
to take care of the State Police and the Sheriff‘s Department.” Id., at 334.
At the bottom of this post was a link to the Wikipedia article on “Freedom of speech.” Ibid. Elonis‘s reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a movie Elonis liked and observations on a comedian‘s social commentary, id., at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:
“That‘s it, I‘ve had about enough
I‘m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is... which one?” Id., at 335.
Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis‘s posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called “Little Agent Lady,” which led to Count Five:
“You know your s***‘s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo’ SWAT and an explosives expert while you‘re at it
Cause little did y‘all know, I was strapped wit’ a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus’ waitin’ for y‘all to handcuff me and pat me down
Touch the detonator in my pocket and we‘re all goin’
[BOOM!]
Are all the pieces comin’ together?
S***, I‘m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y‘all didn‘t hear, I‘m gonna be famous
Cause I‘m just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism
cause y‘all think I‘m ready to turn the Valley into Fallujah
But I ain‘t gonna tell you which bridge is gonna fall into which river or road
And if you really believe this s***
I‘ll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]” Id., at 336.
B
A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of
Elonis requested a jury instruction that “the government must prove that he intended to communicate a true threat.” Id., at 21. See also id., at 267-269, 303. The District Court denied that request. The jury instructions
“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Id., at 301.
The Government‘s closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats-“it doesn‘t matter what he thinks.” Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months’ imprisonment and three years’ supervised release.
Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by
We granted certiorari. 573 U. S. 916 (2014).
II
A
An individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony and faces up to five years’ imprisonment.
Elonis argues that the word “threat” itself in
These definitions, however, speak to what the statement conveys-not to the mental state of the author. For example, an anonymous letter that says “I‘m going to kill you” is “an expression of an intention to inflict loss or harm” regardless of the author‘s intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.
For its part, the Government argues that
The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an “intent to extort” from
In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of
B
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” Id., at 252. As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, our cases have explained that a defendant generally must know the facts that make his conduct fit the definition of the offense,” Staples v. United States, 511 U. S. 600, 608, n. 3 (1994), even if he does not know that those facts give rise to a crime.
Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for “knowingly convert[ing]” property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248-249. This Court reversed the defendant‘s conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable “if he truly believed [the casings] to be abandoned.” Id., at 271; see id., at 276.
By the same token, in Liparota v. United States, we
To take another example, in Posters ‘N’ Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994). Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant‘s state of mind. Id., at 517-522. But, we held, an individual could not be convicted of selling such paraphernalia unless he “knew that the items at issue [were] likely to be used with illegal drugs.” Id., at 524. Such a showing was necessary to establish the defendant‘s culpable state of mind.
And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of mi-
When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.‘” Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under
C
Elonis‘s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct-awareness of some wrongdoing.” Staples, 511 U. S., at 606-607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943); emphasis added). Having liability turn on whether a “reasonable person” regards the communication as a threat-regardless of what the defendant thinks-“reduces culpability on the all-important element of the crime to negligence,” Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C. Torcia, Wharton‘s Criminal Law §27, pp. 171-172 (15th
The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant “comprehended [the] contents and context” of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state-a “foreigner, ignorant of the English language,” who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate “the circumstances known” to a defendant. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372-373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government‘s position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.
In support of its position the Government relies most heavily on Hamling v. United States, 418 U. S. 87 (1974). In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material only if they knew the “legal status of the materials” distributed. Id., at 121. Absolving a defendant of liability
This holding does not help the Government. In fact, the Court in Hamling approved a state court‘s conclusion that requiring a defendant to know the character of the material incorporated a “vital element of scienter” so that “not innocent but calculated purveyance of filth... is exorcised.” Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966); internal quotation marks omitted). In this case, “calculated purveyance” of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context.
Contrary to the dissent‘s suggestion, see post, at 4-5, 9-10 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896), undermines this reading. The defendant‘s contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31-33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material “could be properly or justly characterized as obscene.” Id., at 41. The Court correctly rejected this “ignorance of the law” defense; no such contention is at issue here. See supra, at 10.
*
*
In light of the foregoing, Elonis‘s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis‘s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant‘s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under
There is no dispute that the mental state requirement in
Both JUSTICE ALITO and JUSTICE THOMAS complain about our not deciding whether recklessness suffices for liability under
JUSTICE ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding
Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under
We may be “capable of deciding the recklessness issue,” post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.
The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: It is emphatically the province and duty of the judicial department to say what the law is. Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
The Court‘s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide
There is no justification for the Court‘s refusal to provide an answer. The Court says that [n]either Elonis nor the Government has briefed or argued the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I
Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court
Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court‘s, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9–13. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We ordinarily resist reading words or elements into a statute that do not appear on its face. Bates v. United States, 522 U. S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant‘s acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or—more rarely—negligence). 1 W. LaFave, Substantive Criminal Law §5.5, p. 381 (2003). Based on these background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded, we require some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime.
For a similar reason, I agree with the Court that we should presume that an offense like that created by
Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant should [have] be[en] aware of a substantial and unjustifiable risk, ALI, Model Penal Code §2.02(2)(d), p. 226 (1985), while recklessness exists when a person disregards a risk of harm of which he is aware, Farmer v. Brennan, 511 U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide
Accordingly, I would hold that a defendant may be convicted under
II
There remains the question whether interpreting
It is settled that the Constitution does not protect true threats. See Virginia v. Black, 538 U. S. 343, 359–360 (2003); R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992); Watts, 394 U. S., at 707–708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a therapeutic purpose, to deal with the pain . . . of a wrenching event, or for cathartic reasons, the threat is protected. Brief for Petitioner 52–53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. Taken in context, lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel extremely afraid and like [she] was being stalked. Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4–16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that
III
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis‘s conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts.
At trial, Elonis objected to the District Court‘s instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19–21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 (Section 875(c) requires proof that the defendant intended the charged statement to be a ‘threat’ (emphasis in original)); Corrected Brief of Appellant in No. 12–3798 (CA3), p. 14 ([A] ‘true threat’ has been uttered only if the speaker acted with subjective intent to threaten (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds. We have often applied harmless-error analysis to cases involving improper instructions. Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503–504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206–207 (2009). It should be given the chance to address that possibility here.
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for
I
A
Enacted in 1939,
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face,
Under this conventional mens rea element, the defendant [must] know the facts that make his conduct illegal, Staples, supra, at 605, but he need not know that those facts make his conduct illegal. It has long been settled that the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. Bryan v. United States, 524 U. S. 184, 192 (1998) (internal quotation marks omitted). For
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction under a federal obscenity statute that punished anyone who shall knowingly deposit, or cause to be deposited, for mailing or delivery, any obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character. Rosen v. United States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat. §3893). In that case, as here, the defendant argued that, even if he may have had actual knowledge or notice of [the paper‘s] contents when he put it in the mail, he could not be convicted of the offence . . . unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious. 161 U. S., at 41. The Court rejected that theory, concluding that if the material was actually obscene and deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Ibid. As the Court explained, Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of
This Court reaffirmed Rosen‘s holding in Hamling v. United States, 418 U. S. 87 (1974), when it considered a challenge to convictions under the successor federal statute, see id., at 98, n. 8 (citing
Decades before
who knowingly and willfully deposits or causes to be deposited for conveyance in the mail . . . any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President. Act of Feb. 14, 1917, ch. 64, 39 Stat. 919.
B
Applying ordinary rules of statutory construction, I would read
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under
Demanding evidence only of general intent also corresponds to
C
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante, at 13–16. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under
But general intent requires no mental state (not even a negligent one) concerning the fact that certain words meet the legal definition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury‘s application of the legal standard of a threat to the contents of a communication. And convicting a defendant despite his ignorance of the legal—or objective—status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claim-
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling approved a state court‘s conclusion that requiring a defendant to know the character of the material incorporated a ‘vital element of scienter’ so that ‘not innocent but calculated purveyance of filth . . . is exorcised.’ Ante, at 15 (quoting Hamling, 418 U. S., at 122 (in turn quoting Mishkin v. New York, 383 U. S. 502, 510 (1966))). According to the Court, the mental state approved in Hamling thus turns on whether a defendant knew the character of what was sent, not simply its contents and context. Ante, at 15. It is unclear what the Court means by its distinction between character and contents and context. Character cannot mean legal obscenity, as Hamling rejected the argument that a defendant must have awareness of the obscene character of the material. 418 U. S., at 120 (internal quotation marks omitted). Moreover, this discussion was not part of Hamling‘s holding, which was primarily a reaffirmation of Rosen. See 418 U. S., at 120–121; see also Posters ‘N’ Things, 511 U. S., at 524–525 (characterizing Hamling as holding that a statute prohibiting mailing of obscene materials does not require proof that [the] defendant knew the materials at issue met the legal definition of ‘obscenity‘).
The majority‘s treatment of Rosen is even less persuasive. To shore up its position, it asserts that the critical portion of Rosen rejected an ‘ignorance of the law’ defense, and claims that no such contention is at issue here. Ante, at 15. But the thrust of Elonis’ challenge is
D
The majority today at least refrains from requiring an intent to threaten for
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante, at 4–5, 16 (concluding that Elonis’ conviction under
Elonis also insists that we read an intent-to-threaten element into
In light of my conclusion that Elonis was properly convicted under the requirements of
A
Elonis does not contend that threats are constitutionally protected speech, nor could he: From 1791 to the present, . . . our society . . . has permitted restrictions upon the content of speech in a few limited areas, true threats being one of them. R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992); see id., at 388. Instead, Elonis claims that only intentional threats fall within this particular historical exception.
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N. J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68–69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, §5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich. Const., Art. I, §7 (1835); N. J. Const., Art. I, §5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, §31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase freedom of speech in the First Amendment. See Roth v. United States, 354 U. S. 476, 481–483 (1957) (engaging in a similar inquiry with respect to obscenity).
Shortly after the founding, several States and Territo-
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital offense to knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name . . . threatening to kill or murder any of his Majesty‘s Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded. 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K. B. 1776), for example, the trial court instructed the jurors that, if they were of opinion that the terms of the letter conveyed an actual threat to kill or murder, and that the prisoner knew the contents of it, they ought to find him
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane‘s A General Abridgement of American Law—a necessary adjunct to the library of every American lawyer of distinction, 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)—discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31–32 (1824). And as this Court long ago recognized, It is doubtless true . . . that where English statutes . . . have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority. Pennock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Commonwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering English cases persuasive authority in interpreting similar
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim‘s] mind. 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental state was required as a matter of law. After all,
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge, 75 Mich. 488, 490–493, 42 N. W. 997, 998 (1889); State v. Benedict, 11 Vt. 236, 239 (1839), which is insufficiently similar to the offense criminalized in
Two of Elonis’ cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible to prove guilty knowledge of the defendant, when that is an essential element of the crime; that is, the quo animo, the intent or design, and offers as an example that in the context of sending a threatening letter, prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question. State v. Graham, 121 N. C. 623, 627, 28 S. E. 409, 409 (1897). But it is unclear from that statement whether that court thought an intent to threaten was required, especially as the case it cited for this proposition—Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a general-intent approach. The other case Elonis cites involves a statutory provision that had been judicially limited to pertain to one or the other acts which are denounced by the statute, namely, terroristic activities carried out by the Ku Klux Klan. Commonwealth v. Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910) (quoting Commonwealth v. Patrick, 127 Ky. 473, 478, 105 S. W. 981, 982 (1907)). That case thus provides scant historical support for Elonis’ position.
B
Elonis also insists that our precedents require a mental
As Elonis admits, Watts expressly declined to address the mental state required under the First Amendment for a true threat. See 394 U. S., at 707–708. True, the Court in Watts noted grave doubts about Raganksy‘s construction of willfully in the presidential threats statute. 394 U. S., at 707–708. But grave doubts do not make a holding, and that stray statement in Watts is entitled to no precedential force. If anything, Watts continued the long tradition of focusing on objective criteria in evaluating the mental requirement. See ibid.
The Court‘s fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Black concerned a Virginia cross-burning law that expressly required an intent to intimidate a person or group of persons, 538 U. S., at 347 (quoting Va. Code Ann. §18.2–423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that any cross burning [w]as prima facie evidence of intent to intimidate. 538 U. S., at 347–348. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions based solely on the fact of cross burning itself, including cross burnings in a play or at a political rally. Id., at 365–366 (plurality opinion); id., at 386 (Souter, J., concurring in judgment in part and dissenting in part) (The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating
In addition to requiring a departure from our precedents, adopting Elonis’ view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit fighting words, those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction, Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of fighting words turns on how the ordinary citizen would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended, and that the punishment of such statements as a criminal act would raise no question under [the Constitution], Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572–573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing fighting words); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) ([T]he only intent required for conviction . . . was an intent to speak the words). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment without proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120–124. And our precedents allow
*
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mental-state requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority‘s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today‘s decision rests.
I respectfully dissent.